N1 Claim 1st Credit Lloyds Overdraft*** Settled Tomlin Order***

[downsouth]

Thanks again, I've digested that and will prepare myself for next week.

 

Going back to their reply to my defence I'd appreciate a bit of help here

 

Your defence is that you dispute the charges on this account as being excessive and require documentation to substantiate the claim. We note that you admit to having a current account with ltsbicon but deny that you exceeded your overdrafticon limit [i didn't deny I said it will be mainly excessive charges]

 

We enclose the statements of account for the period 12/05 to 11/09. Your overdraft limit was £xxxx and it is apparent that you made full use of that facility.

[i've added up all the charges here and with interest they cover the amount claimed, its just charges on charges, although the account was active (post 19)

 

 

You were notified of the charges to the account within your monthly statements. Therefore in order to avoid the account to go into an unarranged overdraft you would have been notified of those charges in advance. It was your responsibility to ensure that there were sufficient funds to keep the account within the arranged overdraft limit. We consider therefore that the charges applying to the account were fair and payable. [i can deal with this bit]

 

We also enclose the notice of assignment and introductory letter sent Dec 13. We note that it is the same address and submitted in your defence for service. We did not receive the notice as undelivered. As such the notice is deemed serve. [help please here, I don't recall receiving this earlier]

 

We note your request pursuant to CPR 31.14. Please note that CPR 31 does not apply because this is a small claimsicon matter. Further no agreement is referred to in the Particulars of Claim such that agreement would be a disclosed document pursuant to CPR 31.14. In addition pursuant to Part V of the CCA 1974 an overdraft facility is exempt for the purposes of written agreements. We confirm therefore that no agreement is required for the debt to be enforceable. [again, help here please]

 

As to a demand/recall notice whilst we have requested the original creditor to provide details of the same we confirm that this is a claim for arrears. As such a default notice is not required for us to enforce the debt. [nothing received but is this true?

]

 

Given that you admit to having a current account with overdraft facility we consider this to be a partial admission. We therefore invite you to contact us ith regard to settling the account without resorting to further costs in litigating. If we do not hear from you by [date] we will advise the court of our intention to proceed with this claim. [i ignored them of course]

 

 

My main defence is unfair charges but would like assistance wrt to their legal arguments above please.

[Guest]

re a couple of yr points

 

back then, an o/d didnt require a credit agreement if claimed exemption, but then wld require compliance with the OFT Determination re such exemption. cld get them to show compliance with this determination. maybe a long shot, but never know. (now (since 2011), o/d's are subject to the revised part V which requires an agreement to be supplied)

 

whilst a (s87 cca) dn may not be required, they wld still have to send a formal notice calling in the o/d.

[downsouth]

Also, whilst considering my position re mediation, if I were to consider counterclaiming charges would I be able to claim against 1st Credit, or would that have to be against Lloyds?

[downsouth]

Suppose it makes no odds really. I've been typing out a loose 'WS' listing points I'll be prepared for during the mediation, and it's made me quite fired up about how banks blatantly engineered debt (in my case regularly over £250/month in charges and interest - for years - with no regular credits in and not a single effort to halt the madness) then just flogged it on to even nastier hounds once they knew I'd had enough and that collection was unenforceable.

 

I know, I need to be calm for this telephone ordeal, I will try!

[AndyOrch]

Anything you are unsure of downsouth fire away now and ask me...for the record their response above is utter nonsense

 

Regards

 

Andy

[downsouth]

Thanks Andy. I'm unsure on whether they really think they have a case with a handful of photocopied statements and an apparent copy of a Notice of Assignment ?!

 

No agreement, overdrafts exempt from written agreements, no default notice - really?

 

So if you could expand a little on what nonsense they are spouting I'd be grateful!

[AndyOrch]

Your defence is that you dispute the charges on this account as being excessive and require documentation to substantiate the claim. We note that you admit to having a current account with ltsb but deny that you exceeded your overdraft limit and ???

 

We enclose the statements of account for the period 12/05 to 11/09.Where are10/11/12/13/14s Your overdraft limit was £xxxx and it is apparent that you made full use of that facility.Define made full use...do they mean the bank exceeded it ?

[i've added up all the charges here and with interest they cover the amount claimed, its just charges on charges, although the account was active (post 19)

 

 

You were notified of the charges to the account within your monthly statements. Therefore in order to avoid the account to go into an unarranged overdraft you would have been notified of those charges in advance. It was your responsibility to ensure that there were sufficient funds to keep the account within the arranged overdraft limit. We consider therefore that the charges applying to the account were fair and payable. [i can deal with this bit]

 

We also enclose the notice of assignment and introductory letter sent Dec 13. We note that it is the same address and submitted in your defence for service. We did not receive the notice as undelivered. As such the notice is deemed serve. [help please here, I don't recall receiving this earlier]

They cant prove it was sent

 

We note your request pursuant to CPR 31.14. Please note that CPR 31 does not apply because this is a small claims matter.Not yet it has not been allocated to track Further no agreement is referred to in the Particulars of Claim such that agreement would be a disclosed document pursuant to CPR 31.14. In addition pursuant to Part V of the CCA 1974 an overdraft facility is exempt for the purposes of written agreements. We confirm therefore that no agreement is required for the debt to be enforceable. [again, help here please] You didnt ask for an agreement we know O/Ds were excempt from the CCA1974 except for PART V you asked for a copy of the O/D facility Notice which must be disclosed since 2011 O/Ds are subject to the revised part V which requires a Facility Agreement to be supplied

 

As to a demand/recall notice whilst we have requested the original creditor to provide details of the same we confirm that this is a claim for arrears. As such a default notice is not required for us to enforce the debt. [nothing received but is this true?] Overdrafts balances are not arrears its available finance..you cant have arrears there is no agreement...you cant default...so you cant have arrears...not to worry they have asked for it

 

Given that you admit to having a current account with overdraft facility we consider this to be a partial admission.Only the court can determine that not them We therefore invite you to contact us ith regard to settling the account without resorting to further costs in litigating.Because they have to pay a further fee to proceed If we do not hear from you by [date] we will advise the court of our intention to proceed with this claim.So let them proceed

[downsouth]

Perfect. I can now answer all their points whilst keeping my powder dry.

 

Thanks Andy, I'll let you know how it goes.

[AndyOrch]

They may not raise any of the above...so approach it with an open mind and keep stating how much of it is penalty fees/admin charges and interest and you dont owe anything in your opinion...they created the balance.

 

Dont be fooled into thinking this is like a credit card or personal loan debt its not...you never borrowed anything.

[downsouth]

That went quickly!

 

Court next.

[AndyOrch]

Mediation is not really appropriate to some money claims.....still you have participated.

[Guest]

downsouth

 

re # 27. if not seen already, for yr ref this was the determination (re exclusion re part v, facility letter/notice) (this determ no longer applied after feb '11)

 

 

THE DETERMINATION:

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

'1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the consumer credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded: - of the credit limit, if any, - of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended, - of the procedure for terminating the agreement; and this information shall be confirmed in writing.

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended.'

[downsouth]

Got a couple of days to get my WS filed. Will do some more reading.

 

 

ETA Andyorch, found your Lowell v Potman WS on superstarjan's similar thread (she's about a week in front of me from the look of things), good work again!

[downsouth]

I have a question about the copy of the alleged notice of Assignment that Lloyds sent to me which I don't recall receiving. Might be nothing but it doesn't mention the word 'debt'

 

... We are writing to notify you that LB PLC has assigned all of its respective rights, title and interest in respect of the above referenced account (including the outstanding balance) to 1st Credit...

... The total balance sold was £xxxx.xx [not a negative figure], as at the sate of sale ddmmyy. Any payments made towards your LBPLC account after ddmmyy will be forwarded to 1st credit and will be deducted from the balance shown above...

[Guest]

.... but it doesn't mention the word 'debt'

 

..

 

 

how would that effect the notice requirements?

[downsouth]

yeah disregard that question please, it's irrelevant.

[downsouth]

Court tomorrow, think I'm ready.

 

Skeleton argument is basically

 

a. The overdrawn account is comprised of unfair and excessive penalty charges and interest dating back many years and of which only a small portion of imcomplete statements have been supplied in evidence.

 

b. There are no overdraft facility arrangement confirmation and terms and conditons.

 

c. No Demand or Recall notice has been served

 

d. CPR pre action protocol has not been followed in effort to settle prior to claim

 

d. Above relates to their only LBA, a copy of which appeared in their WS, and which was addressed to an old temporary address from over 10 years ago. So should assist with getting my costs I think.

[AndyOrch]

Best of luck for tomorrow DS...please update your thread on what transpires.(good or bad)

 

Regards

 

Andy

[downsouth]

Somehow got an adjournment, thanks to a very sympathetic Judge. Which is code for 'settle as best you can'.

 

These overdraft cases are a bit of gold for the likes of 1st Credit. Hugely profitable

 

Oh well, my good fortune in fighting these leeches had to end sometime.

[superstarjan]

Sorry to hear that Downsouth. What a pain after all your hard work! Have you contacted them to settle and if so did you get a good settlement figure?

[downsouth]

No. The case is adjourned, similar to yours, but I have a month to submit. Or settle. During the hearing, in an interval suggested by the judge, I offered to settle (for half) but this was rejected by the Claimant.

 

Since OFT v Abbey National and others it seems there is little point trying to defend these overdraft cases. Even when charges make up (nearly) the whole amount claimed and they have nothing save a clutch of statements and Assignment notices.

 

In your case, for a grand or whatever, just settle. I expect they'll allow monthly payments and a Tomlin order (so no CCJ) if you offer the whole lot.

[superstarjan]

Have you had any joy with this Downsouth?

[downsouth]

Hi Jan

 

No. I'm still awaiting the typed Order from the hearing. In short though, the judge dismissed all of my 'procedural' arguments, ie no facililty arrangement confirmation, t&cs, demand/recall notice.

 

He also stated since OFT v Abbey National ruling against the OFT and therefore the consumer, ANY notion of unfairness in bank charges also won't stand.

 

His olive branch is that I may have a valid defence contractually with the bank routinely adding on hundreds of pounds pm in charges and interest, but why did I never approach the bank about it, therefore I must seek 'proper advice' on this should I wish to continue my defence, and costs for the claimant have been allowed (assuming they win).

 

I will type up the order once it arrives just in case CAG would like to get involved, but I'm not expecting to continue as it stands.

 

It amounts to about £7,000 including costs (which are of course rising) so no small beer.

[SabreSheep]

If this is small claims the costs rising will be limited.

 

interest and charges issued after 2009 could in theory be challenged under BCOBS

[downsouth]

My last payment was early 2009. LTSB stopped applying charges and interest in Nov 2009. Debt was sold in late 2013.

 

I'll post the order up once it arrives. I really want to fight this (like I have everyting else) but it seems doomed tbh. It's outside the simplicity of regulated credit agreements.